On November 25, 2018, Vince Chhabria, United States District Judge for the Northern District of California, selected Hardeman v. Monsanto as the first bellwether trial in the multidistrict litigation known as MDL No. 2741. Mr. Hardeman, like the other plaintiffs whose cases were consolidated in MDL No. 2741, alleged that exposure to Roundup®, a herbicide produced by Monsanto, had caused his non-Hodgkin’s lymphoma.
In January 2019, Judge Chhabria bifurcated Hardeman v. Monsanto into two parts: the first part would focus on causation, while the second would determine Monsanto’s liability and damages. On March 19, 2019, the first part of the trial ended when a federal jury unanimously found that Roundup® had been a substantial factor in causing Mr. Hardeman’s cancer.
While Hardeman v. Monsanto was taking place in San Francisco, my clinic team was watching rural North Carolina. In spring 2018, North Carolina artist Yvonne Hegney had called ELC with a question: how could she identify the inert ingredients in a given pesticide?
Pesticide product labels list products’ “active” ingredient(s), but labels do not provide products’ “inert” ingredients. And while “inert” means that the ingredients are not intended to kill the targeted pest and/or plant, it does not necessarily mean that these ingredients are nontoxic.
Ms. Hegney’s question was not idle curiosity. In early June 2017, her electric company had sprayed herbicides on vegetation growing in the utility right-of-way on her property without notice. The electric company likely used two herbicides on her property: Polaris®, produced by Nufarm; and Rodeo®, produced by Dow. The active ingredient in Rodeo® is glyphosate—the same as the active ingredient in Roundup®, subject of the MDL No. 2741 litigation.
Shortly after the spraying, Ms. Hegney spent time in her backyard without protective clothing or gear. The next day, she began to suffer from shortness of breath, nausea, headaches, throat irritation, and eye irritation.
By the time I joined the project team in January 2019, ELC had been working on Ms. Hegney’s case for a semester, trying to uncover the composition and hazards of Rodeo and Polaris. As time went by, the team and Ms. Hegney had become additionally interested in her legal rights and remedies. Like the plaintiffs in MDL No. 2741, Ms. Hegney had suffered a harm for which she could potentially seek legal redress. And—as the team only learned in the final seconds of a phone interview halfway through the semester—she was afraid that, as spring began, the electric company would spray her property again.
Reflections & Lessons
Work on the pesticide project required patience and flexibility. Both our short- and long-term objectives evolved throughout the semester. Unlike most projects in law school, the information we needed wasn’t organized on an abstract factual basis in a database or research library. Rather, the information was organized according to people: our client; the USDA chemist who helped us deformulate the pesticides; the North Carolina employees we contacted with public records requests; the North Carolina tort firm we contacted about potential representation for our client. Each conversation led to further conversations, a process made more difficult by the fact that we were over two thousand miles from almost all of the people we wanted to talk to.
The project evolved organically, rather than according to a predetermined structure. Sometimes this meant surprises. We didn’t find out until relatively late in the semester that Ms. Hegney had been sued by her electric company in 2016. As a result, she had entered into a settlement agreement according to which the company wouldn’t spray her property so long as she maintained the right-of-way herself. Then, after deeming her maintenance insufficient, the company sprayed anyway. We also learned that immediately before the electric company sprayed, Ms. Hegney and several of her neighbors had sued under multiple federal causes of action to enjoin the spraying. While these new facts didn’t dramatically alter the project, they required us to quickly come to terms with new information about Ms. Hegney’s factual and legal situation.
The project implied pesticide policy conclusions. The EPA, which regulates pesticides in the US, should not allow use of glyphosate pesticides. Many other countries have banned glyphosate, and in 2015, the International Agency for Research on Cancer found that it is a “probable human carcinogen.” Further, EPA should not allow manufacturers to hide inert ingredients. Inert ingredients can both be toxic themselves and can worsen the health effects of active ingredients by increasing their absorption, bioavailability, or toxicity. When individuals like Ms. Hegney are exposed to pesticides without their consent, there is no way for them to know what has poisoned their body, compounding the injury done by parties like Ms. Hegney’s electric company.
Ultimately, however, the point of our project was not to craft a thesis statement about the harm done by pesticides, but to help one individual victim of that harm, working through the irregularities, missing facts, and specific personalities that any particular case inevitably entails. Our work with Ms. Hegney was an intervention at a late stage of the policy pipeline: past the stage at which EPA registers pesticides, past the stage at which North Carolina regulates pesticide operators, past the stage at which Ms. Hegney’s electric company chooses the products it will use. Our work didn’t begin until after the harm had already been done, which is both frustrating—any individual case is too idiosyncratic to serve as a perfect example of cause and effect—and necessary: the harm at the end of the policy trajectory is exactly the reason that the beginning of the trajectory needs reform in the first place.
This is why it was so exciting to watch the Monsanto litigation happening in tandem with Ms. Hegney’s case: together, our cases represent linked data points, parts of the same narrative that will hopefully one day become an overwhelming legal and political consensus.